Holding Elec., Inc. v. Roberts

• Decision Date: 08 September 1988
• Docket Number: No. 71387,71387
• Citation: 13 Fla. L. Weekly 539,530 So. 2d 301
• Parties: 13 Fla. L. Weekly 539 HOLDING ELECTRIC, INC., Petitioner, v. Linda M. ROBERTS, Respondent.
• Court: Florida Supreme Court

Page 301

530 So.2d 301

13 Fla. L. Weekly 539

HOLDING ELECTRIC, INC., Petitioner, v.Linda M. ROBERTS, Respondent.

No. 71387.

Supreme Court of Florida.

Sept. 8, 1988.

John W. Conlin, Marathon, for petitioner.

W. Wyndham Geyer, Jr. of Ruden, Barnett, McClosky, Smith, Schuster & Russell, Fort Lauderdale, for respondent.

Ronald P. Gossett of Bossett, McDonald, Gossett & Crawford, P.A., Hollywood, amicus curiae for American Subcontractors Ass'n of Florida, Inc.

OVERTON, Justice.

This is a petition to reviewHolding Electric, Inc. v. Roberts, 512 So.2d 1112(Fla. 3d DCA1987), in which the district court certified direct conflict with McMahan Construction Co. v. Carol's Care Center, Inc., 460 So.2d 1001(Fla. 5th DCA1984).We have jurisdiction.Art. V, § 3(b)(4), Fla. Const.

The issue concerns a contractor's failure to serve an affidavit stating that all bills have been paid, in accordance with the provisions of section 713.06(3).Florida Statutes(1985), prior to commencing a mechanic's lien foreclosure action.We must resolve whether the failure to deliver the affidavit is a fatal jurisdictional defect, or whether the failure may be corrected by delivering the affidavit prior to filing an amended complaint.For the reasons expressed, we hold that an amended complaint may be filed to show delivery of the contractor's affidavit, provided the statute of limitations has not run prior to the filing of the amended complaint.

The pertinent facts reflect that petitioner, Holding Electric, Inc., entered into a standard form owner-contractor agreement with Bonefish Yacht Club to install electrical systems in a condominium complex owned and developed by Bonefish.On July 1, 1985, following a payment dispute, the petitioner filed a lien in the public records against the development property for $9,500, the balance due under the contract.To correct an inadequate legal description, the petitioner filed a second lien on August 29, 1985.

In December, 1985, the petitioner filed a complaint seeking to foreclose the mechanic's lien.Bonefish moved to dismiss, alleging that petitioner failed to comply with section 713.06(3)(d)1, Florida Statutes(1985), which states:

(d) When the final payment under a direct contract becomes due the contractor:

1.The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services, or materials furnished.The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit.The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or not.

In response, the petitioner, on January 23, 1986, moved to amend the complaint, claiming that through inadvertence the affidavit had not been filed, but asserting in the motion that an affidavit had been delivered to the Bonefish Yacht Club on January 20, 1986, stating that "all persons, laborers, materialmen and other possible lienholders under its contract or supervision have been paid in full."The trial court, on February 6, 1986, granted, in the words of the order, petitioner's "Motion to Amend a Complaint for Foreclosure of Mechanic's Lien filed by the Plaintiff so as to allow the Plaintiff to plead delivery of an Affidavit of Contractor."On June 26, 1986, petitioner moved to amend the complaint to add the respondent, Linda Roberts, as an indispensable and necessary party since she had purchased a condominium unit on November 8, 1985, from Bonefish Yacht Club.That motion was granted on June 30, 1986, which was within the limitation period of one year from the recording of the first claim of lien.§ 713.22(1),Fla.Stat.(1985).The respondent, Roberts, in October, 1986, moved to dismiss the complaint on grounds that the petitioner had failed to deliver a contractor's affidavit at least five days before instituting the action to foreclose the mechanic's lien.The trial court granted the motion with prejudice.

On appeal, the Third District Court of Appeal affirmed, concluding it was bound by its prior decision in Mardan Kitchen Cabinets, Inc. v. Burns, 312 So.2d 769(Fla. 3d DCA1975).In Mardan, the contractor recorded a lien on the owner's property and filed a complaint for foreclosure.The owner answered and the matter proceeded to trial.Three days before the final hearing, the contractor mailed to the owner, for the first time, the affidavits showing the amounts owed to unpaid lienors and payment to all other lienors.The owner then moved to dismiss the complaint for noncompliance with section 713.06(3)(d)1.The trial court denied the contractor's motion to amend and granted the owner's motion to dismiss.The district court affirmed, holding the trial court"was correct in denying the motion to amend and in dismissing the complaint without prejudice since neither the complaint alone nor with the amendment added to it, could present a valid action for mechanic's lien foreclosure."Id. at 770.Continuing, the court stated, the "proposed amendment to add the allegation that an affidavit had been supplied was futile since the affidavit was not timely."Id.

In McMahan Construction Co. v. Carol's Care Center, Inc., 460 So.2d 1001(Fla. 5th DCA1984), the Fifth District Court of Appeal, in a similar situation, refused to apply the Mardan decision and held that "the filing of the affidavit belatedly was not fatal to the mechanic lien foreclosure."Id. at 1004.In so holding, the Fifth District followed its own decision in Askew v. County of Volusia, 450 So.2d 233(Fla. 5th DCA...